[2021] KEELC 3404 (KLR)
The court found that the applicant, as the registered proprietor of the property, was entitled to be heard before any restrictions or objections were registered against its title. The respondents failed to provide any explanation or justification for the continued existence of the restrictions and objections, nor...
Source-derived case information.
- Citation
- [2021] KEELC 3404 (KLR)
- Parties
- Applicant: Republic (Ex-parte United Millers Limited); Respondent: County Land Registrar, Kisumu County Land Registry; Respondent: State Department of Housing & Urban Development Kisumu County Director of Housing; Respondent: Ethics & Anti-Corruption Commission; Interested Party: Agriculture and Food Authority
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Judicial Review Application 1 of 2018
- Procedural Posture
- Judicial Review Application / Judgment
- Outcome
- Application partly allowed.
- Judges
- A Ombwayo
- Legal Topics
- Removal of Land Restrictions, Judicial Review Remedies, Procedural Fairness, Natural Justice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Republic (Ex-parte United Millers Limited)
Applicant
County Land Registrar, Kisumu County Land Registry
Respondent
State Department of Housing & Urban Development Kisumu County Director of Housing
Respondent
Ethics & Anti-Corruption Commission
Respondent
Agriculture and Food Authority
Interested Party
Procedural Posture
Judicial Review Application / Judgment
Legal Issues
- 1 Whether the respondents acted lawfully in registering restrictions and objections against the applicant's property without affording a hearing.
- 2 Whether the applicant is entitled to orders of mandamus compelling removal of the restrictions and objections on the property.
- 3 Whether an order of prohibition should issue to prevent future restrictions or encumbrances on the property.
Ratio Decidendi
The court found that the applicant, as the registered proprietor of the property, was entitled to be heard before any restrictions or objections were registered against its title. The respondents failed to provide any explanation or justification for the continued existence of the restrictions and objections, nor did they respond to the application. The court held that the registration of the restrictions and objections without affording the applicant a hearing amounted to procedural impropriety and violated the applicant's constitutional rights. Consequently, the court granted orders of mandamus compelling the respondents to remove the impugned restrictions and objections. However, the...
Court Disposition
Application partly allowed.
Orders
- An order of mandamus is granted compelling the respondents to jointly and/or singularly remove the restriction registered as entry No. 7 on 28th March, 2017 against Title No. Kisumu Municipality/Block 12/40.
- An order of mandamus is granted compelling the respondents to jointly and/or singularly remove the objection registered as entry No. 8 on 23rd May, 2017 against Title No. Kisumu Municipality/Block 12/40.
Full Case Text
Judgment text and source record
55 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENTAL AND LAND COURT
AT KISUMU
JUDICIAL REVIEW APPLICATION NO. 1 OF 2018
IN THE MATTER OF AN APPLICATION BY UNITED MILLERS LIMITED
FOR LEAVE TO APPLY FOR ORDERS OF MANDAMUS AND PROHIBITION
AND
IN THE MATTER OF ARTICLES 22, 23, 40, 47, 50(1) AND 67 OF THE CONSTITUTION OF KENYA
AND
IN THE MATTER OF SECTION 78 OF THE LAND REGISTRATION ACT NO. 3 OF 2012
AND
IN THE MATTER OF SECTION 14 OF THE NATIONAL LAND COMMISSION ACT, 2012
AND
IN THE MATTER OF THE COUNTY GOVERNMENT ACT, 2012
AND
IN THE MATTER OF TITLE NO. KISUMU MUNICIPALITY/BLOCK 12/40
BETWEEN
REPUBLIC..........................................................................................................................APPLICANT
EX-PARTE UNITED MILLERS LIMITED
VERSUS
THE COUNTY LAND REGISTRAR, KISUMU COUNTY LAND REGISTRY.....1ST RESPONDENT
STATE DEPARTMENT OF HOUSING &
URBAN DEVELOPMENTKISUMU COUNTY DIRECTOR OF HOUSING.....2ND RESPONDENT
THE ETHICS & ANTI-CORRUPTION COMMISSION........................................3RD RESPONDENT
AND
THE AGRICULTURE AND FOOD AUTHORITY..............................................INTERESTED PARTY
JUDGEMENT
United Millers Ltd hereinafter referred to as exparte Applicant has come to court against the County Land Registrar and the State Department of Housing and Urban Development and the Kisumu County Director of Housing, the E.A.C.C. and the Agriculture and food Authority praying for an order to review the Decree of the Judgement of the 3rd day of February 2020 and an order of Mandamus to compel the respondents to jointly and/or singularly remove the restriction registered as entry No. 7 on the 28th day of March, 2017 against Title No. Kisumu Municipality/Block 12/40.
An order of Mandamus to compel the Respondents to jointly and/or singularly remove the Objection registered as entry No. 8 on the 23rd day of May, 2017 against Title No. Kisumu Municipality/Block 12/40.
An order of prohibition prohibiting the Respondents and the Interested Party jointly and/or singularly from further placing any restriction, caution and/or encumbrance against Title No. Kisumu municipality/Block 12/40. The costs of this Application be provided for.
The application is based on grounds that:
i) The Ex-parte Applicant is the registered proprietor of the leasehold interest of all that parcel of land known as Title No. Kisumu Municipality/Block 12/40.
ii) The Ex-parte Applicant acquired the subject property in February 1998 as a bonafide purchaser for value from the then Cotton board of Kenya (formerly Cotton Lint & Seed Marketing Board) a statutory body established under the Cotton Act, Cap 335 laws of Kenya, which is now repealed by the crops Act No. 16 of 2013.
iii) The Ex-parte Applicant moved the Honourable Court vide the Notice of Motion dated 23rd January, 2018 for order of mandamus and prohibition against the 1st, 2nd, and 3rd Respondents.
iv) The Honourable court on the 3rd day of February, 2020 ordered the 2nd Respondent to remove the restriction registered as entry No. 6 on the 15th day of May, 2008 against title No. Kisumu Municipality/Block 12/40.
v) The said restriction registered as No. 6 was removed vide entry number 9 on the 28th day of February, 2020.
vi) The Applicant on removing the said entry No. 6 discovered that restrictions No. 7 and 8 had already been registered against title No. Kisumu Municipality/Block 12/40 on the 28th day of March and 23rd day of May, all of 2017 all unknowledgeable to the ex-parte Applicant.
vii) The entries No. 7 and 8 registered against title No. Kisumu municipality/Block 12/40 are both marred with procedural impropriety as the ex-parte Applicant was condemned unheard, thus violating the rules of Natural Justice.
viii) The continuance existence of the said restrictions lack proportionality to the aim it seeks to achieve as it violates the Ex-parte Applicant’s constitutional right to own and enjoy its property.
ix) At the time of the suit, restrictions No. 7 and 8 were registered against title No. Kisumu Municipality/Block 12/40 on the 28th day of March and 23rd day of May, all of 2017 all unknowledgeable to the ex-parte applicant.
x) There has been discovery of new and important matter of evidence with respect to the 1st and 2nd respondents infringing on the rights to the Ex-parte Applicant.
xi) The application has been brought without inordinate delay.
xii) That it is in the interest of justice that the prayers sought in the application be allowed.
The application is supported by the affidavit of Sunil Narsh Shah that basically reiterates the grounds of the application. The Respondents have not replied to the application meaning that they do not oppose the application or are not interested. The application before me is basically for Judicial Review order of mandamus.
The efficiency and scope of the order of mandamus was discussed by the court of appeal in the the case of Kenya National Examinations Council vs. Republic, Ex-parte Geoffrey Gathenji Njoroge & 9 others [1997] eKLR:
“an order of mandamus compels the performance of a public duty imposed by statute where the person or body on whom the duty is imposed fails or refused to perform the same.”
In this case, I do find the 1st Respondent has a duty to remove a restriction where no cogent explanation has been given as to why the restriction has to be retained. I do grant an order of Mandamus to compel the respondents to jointly and/or singularly remove the restriction registered as entry No. 7 on the 28th day of March, 2017 against Title No. Kisumu Municipality/Block 12/40.
An order of Mandamus to compel the Respondents to jointly and/or singularly remove the Objection registered as entry No. 8 on the 23rd day of May, 2017 against Title No. Kisumu Municipality/Block 12/40.
I do decline to grant an order of prohibition prohibiting the Respondents and the Interested Party jointly and/or singularly from further placing any restriction, caution and/or encumbrance against Title No. Kisumu municipality/Block 12/40 as the same presupposes that there will be a future illegality and that the same is likely to be abused. Costs of the application to the applicant.
DATED AT KISUMU THIS 29th DAY OF APRIL, 2021
ANTONY OMBWAYO
JUDGE
This Judgement has been delivered to the parties by electronic mail due to measures restricting court operations due to the COVID-19 pandemic and in the light of the directions issued by his Lordship, the Chief Justice on 15th March 2019.
ANTONY OMBWAYO
JUDGE